IBAC Insights (newsletter)

Police exercise a wide array of powers. These powers include the ability to detain, search, arrest, use force, take fingerprints or forensic samples, enter private premises and seize property, engage in covert investigation and surveillance. A number of legal processes exist that test the legality of any of these actions in terms of whether the police had lawful authority for a particular action. However, in addition to the idea of legality, an effective complaints handling system can help to hold police more broadly accountable for how they exercise these and other powers. This is important because the community has a reasonable expectation that police will exercise their powers and discretion to the highest standards of competence, fairness and honesty.
  
On occasion, police do not meet these standards and aberrant behaviour is subjected to the scrutiny of the internal police discipline system and/or external scrutiny from IBAC (Victoria’s Independent Broad-based Anti-corruption Commission). The ‘disinterested’ independence of police processes is central to integrity, and both the fact and appearance of independence are central to the maintenance of public trust in policing. Where a breach of standards and rules is found – which also constitutes a breach of the public trust –  at the extreme end, specific criminal charges relating to police misconduct are possible (while rare). This represents, symbolically and practically, a public demonstration that police are subject to the same laws and legal processes they are given the responsibility to enforce.
  
Nevertheless, a standard criticism is the claim that police cannot be trusted to police themselves. While this claim is an oversimplification, there are many historical examples in Australia where significant elements of various police forces have been found to be demonstrably corrupt and where widespread misconduct was a day-to-day reality.

Bringing police to account is no easy task. In 2008, I published an in-depth study on conflict of interest in Victoria Police which examined ten years of complaint patterns and internal investigations conducted by the then Ombudsman’s Office and Victoria Police Ethical Standards Department (C. Davids, Conflict of Interest in Policing: Problems, practices and principles, Institute of Criminology, Sydney, April 2008). I saw first-hand the importance of external oversight in the system of accountability for individual officers, as well as its role as an effective element in attending to the wider organisational accountability of Victoria Police. Combined with processes of internal review, a model of external oversight should mean complaint cases are assessed and investigated in a thorough and independent manner (resource allocation and managerial will permitting).

Victoria has transitioned through a number of models of police accountability. The significant changes in 2004, with the creation of the Office of Police Integrity, provided a singular focus on the police, backed by what was then increased independence, investigatory powers, and financial resources. While the current IBAC has as its integrity and anti-corruption mandate the entire public sector, it still maintains a dedicated focus on independent oversight of Victoria Police. 

IBAC is able to directly receive complaints about police misconduct and corruption, as well as being mandatorily notified by Victoria Police of all complaints and allegations it receives. IBAC makes an assessment as to which organisation will investigate complaints of police corruption or misconduct under a two-track system for investigation. This means that in most cases, complaints will be referred to Victoria Police Professional Standards Command for action. IBAC may retain for direct investigation the more serious or systemic matters. IBAC also subsequently reviews a selection of investigations that it has referred to Victoria Police.  

As part of its investigations, IBAC can conduct private and public examinations and, perhaps increasingly significant, it can undertake major research which informs the public and Victoria Police in relation to systemic problems. This role is very important for the purposes of remediation and prevention of police misconduct and corruption. IBAC has recently published an audit of police complaint handling systems at a regional level (in two of Victoria’s four police regions) providing insight into actual practices and areas of good practice, alongside recommendations for reform. 
 
In addition, IBAC has standing ‘own motion’ powers around the issue of death or serious injury resulting from police contact. These significant powers, particularly own motion investigations and public hearings and examinations, combined with independent strategic research provide a robust check-and-balance on internal police investigations.  

These IBAC powers are essential as the police discipline system is primarily a reactive model that is based essentially on passive forms of accountability. That is, problems are generally dealt with after they arise. Or, in some cases, they are not adequately dealt with at all, as some of the most recent IBAC investigations, such as Operation Ross, and reviews by the Office of Public Prosecutions have revealed.  

Recent case examples underline the value and ongoing need for robust oversight mechanisms. Elements of an effective oversight system must include the power and capacity to conduct independent investigations, sufficient resourcing, and managerial will to effectively review and audit internal investigations, subsequent determinations and sanctions. This involves Victoria Police, IBAC, and, where matters escalate to criminal charges, the Office of Public Prosecutions.  

The recent audit by IBAC also provides a good example of the importance of this process in terms of recommendations regarding changes to the complaint handling process. For the public, IBAC’s recommendation that Victoria Police should release aggregated information regarding the number of complaints, classifications thereof, and outcomes, should provide a boost to transparency and accountability and will have a flow-on impact on public trust.

A further key element of a good oversight system is the ability of an organisation like IBAC to engage in research on police integrity and ethical issues. The reliance on passive accountability in a traditional rule-based police discipline system may succeed in catching and punishing some offenders. But alone, this is unlikely to be effective in preventing future deviance. Research indicates reliance on prescriptive rules can risk the diminishing of the personal sense of ethical responsibility held by individual police officers. Effectiveness of rule-change and reform activities can often be in the indirect effects, including training, supervision, and police culture itself.

Contemporary research on police integrity draws attention to promoting active forms of responsibility in policing not just by focusing on past wrongdoing (albeit an essential element of good investigation and oversight) but through forward-looking prevention of future unwanted situations and events. Intelligence gathering for strategic and operational objectives can also be an important part of forward-looking accountability.  

Effective accountability in policing rests on a recognition of each of the elements canvassed above, and development of the links between accountability, integrity and trust. Processes of independent external review conducted by IBAC add enormously to the efficacy of the police accountability system because, for all of us, social trust relies on the systematic working of ‘institutions of trust’ that can themselves be trusted.